Also known as: Federal Rule of Evidence 801 · FRE § 801 · Rule 801 · FRE 801(d) · hearsay definitions
Written by attorneys · grounded in primary & secondary sources — see below
A federal evidence rule that classifies certain prior statements by a testifying witness and statements by an opposing party as nonhearsay when the declarant testifies and is subject to cross-examination or when the statement meets one of the enumerated categories in subsections (d)(1) or (d)(2). The rule removes qualifying statements from hearsay treatment so they may be offered for their truth.
Francesca Fowler sued Fabian Flynn for breach of contract. At trial Flynn's counsel offered a voicemail in which Fowler admitted missing a key deadline. The court admitted the recording for its truth even though Fowler had not been given an opportunity to explain or deny the statement on the stand.
Faith Fitzgerald testified that Fernando Farrell had caused a car accident. On cross-examination defense counsel implied Fitzgerald fabricated her account to obtain a larger insurance payout. Fitzgerald's attorney then offered a text message she sent to a friend the day after the accident repeating the same account. The court admitted the text because it predated any alleged motive to lie.
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Foxfire Biotech offered a supervisor's out-of-court statement that a product defect existed. Freeman Engineering responded by introducing the supervisor's later inconsistent email denying any defect. The court admitted the email to attack the supervisor's credibility even though the supervisor never testified and had no opportunity to explain the inconsistency.
Fidelity Trust called a teller who had been robbed. The teller testified she could not recall the robber's face. The bank then offered a lineup form the teller had signed the day after the robbery identifying the defendant. The court admitted the form as nonhearsay even though the teller had no present recollection of the identification.
Ferrum Metals was charged with conspiracy to fix prices. The government offered an email from one alleged conspirator describing a meeting with the company's president. The court admitted the email after finding by a preponderance of the evidence that a conspiracy existed and that both the declarant and the president participated in it.
Fatou Fall was prosecuted for drug distribution. The government offered a recorded call in which an alleged coconspirator referred to Fall as the supplier. The court considered the call itself along with other evidence to find by a preponderance that a conspiracy existed and that Fall participated, then admitted the call against her.
The statement must have been given under penalty of perjury at a prior proceeding or deposition, the declarant must testify at the current trial and be subject to cross-examination about the statement, and the statement must be inconsistent with the declarant's testimony.
Yes. A prior consistent statement rebuts an express or implied charge of recent fabrication or improper motive only if made before the onset of that motive.
Yes. The rule requires only that the witness be subject to cross-examination about the statement. Present recollection of the reasons for the identification is not required.
The court must find that a conspiracy existed and that the declarant and the party against whom the statement is offered participated in it. The statement itself may be considered in making that determination.
…conditionally admitted the recorded conversation into evidence under the hearsay exception for statements of co-conspirators, Federal Rule of Evidence 801(d)(2)(E), and petitioner was convicted. The Court of Appeals for the Sixth Circuit affirmed the conviction, holding that the admission of the recorded statements did not violate…